Textron Innovations Inc. v. DENNIS BROOKS
Claim Number: FA1603001667443
Complainant is Textron Innovations Inc. (“Complainant”), represented by Jeremiah A. Pastrick of Continental Enterprises, Indiana, USA. Respondent is DENNIS BROOKS (“Respondent”), New Jersey, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <textron-incorporated.com>, registered with eNom, Inc.
The undersigned certifies that she acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the Forum electronically March 25, 2016; the Forum received payment March 25, 2016.
On March 25, 2016, eNom, Inc. confirmed by e-mail to the Forum that the <textron-incorporated.com> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. verified that Respondent is bound by the eNom, Inc. registration agreement and thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On March 29, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 18, 2016, by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@textron-incorporated.com. Also on March 29, 2016, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On April 20, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant’s Contentions in this Proceeding:
Policy ¶ 4(a)(i)
Complainant has rights in the TEXTRON mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,090,704, registered on May 9,1978). Respondent’s <textron-incorporated.com> domain name is confusingly similar to the TEXTRON mark because it contains the mark along with a hyphen, the generic term “incorporated” and the generic top-level domain (“gTLD”) “.com.”
Policy ¶ 4(a)(ii)
Respondent is not commonly known by the <textron-incorporated.com> domain name because the available WHOIS information lists “DENNIS BROOKS” as Registrant and because Respondent is not authorized to use the TEXTRON mark. Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving webpage displays no content and is used to host an e-mail address in order to impersonate Complainant.
Policy ¶ 4(a)(iii)
Respondent uses the <textron-incorporated.com> domain name in bad faith because it is used to host an e-mail address used to impersonate Complainant through a fraudulent phishing scheme. Respondent registered the <textron-incorporated.com> domain name in bad faith because it did so with actual knowledge of Complainant’s rights in the TEXTRON mark.
Respondent’s Contentions in this Proceeding:
Respondent failed to submit a formal Response. The Panel notes that Respondent registered the <textron-incorporated.com> domain name March 15, 2016.
Complainant established rights to and legitimate interests in the mark contained within the disputed domain name.
Respondent established no such rights or legitimate interests.
Respondent registered a domain name that is confusingly similar to Complainant’s protected mark.
Respondent registered and used the disputed domain name in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires Complainant to prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Given Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and will draw such inferences as the Panel considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Identical or Confusingly Similar:
Complainant claims rights in the TEXTRON mark through its registration with the USPTO (e.g., Reg. No. 1,090,704, registered on May 9,1978). Complainant provided evidence of this registration in its Exhibit 3. Accordingly, the Panel finds that Complainant has rights in the TEXTRON mark under Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [Complainant’s] mark is registered with the USPTO, Complainant has met the requirements of Policy ¶ 4(a)(i).”).
Complainant alleges that Respondent’s <textron-incorporated.com> domain name is confusingly similar to the TEXTRON mark because it contains the mark along with a hyphen, and the generic term “incorporated.” The Panel notes that the domain also contains the gTLD “.com.” As such, the Panel finds that the <textron-incorporated.com> domain name is confusingly similar to the TEXTRON mark according to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy); see also Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term).
Respondent makes no contentions relative to Policy ¶ 4(a)(i).
The Panel finds that Respondent registered a disputed domain name that is confusingly similar to and contains, in its entirety, Complainant’s protected mark. Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Rights or Legitimate Interests:
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden of proof shifts to Respondent to show it does have such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant contends that Respondent is not commonly known by the <textron-incorporated.com> domain name because the available WHOIS information lists “DENNIS BROOKS” as Registrant and because Respondent is not authorized to use the TEXTRON mark. Accordingly, the Panel finds that Respondent is not commonly known by the <textron-incorporated.com> domain name under Policy ¶(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant argues that Respondent fails to use the <textron-incorporated.com> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving webpage displays no content and is instead used to host an e-mail address for the purpose of impersonating Complainant. Complainant provided, in its Exhibit 7, a screenshot of the resolving website, displaying that “[t]his site can’t be reached.” Complainant also provided evidence that the “humanresources@textron-incorporated.com” e-mail address has been used in order to impersonate Complainant to gather information about Internet users. In its Exhibit 5, Complainant provided a screenshot of a job post describing a purported job with Complainant listing the e-mail address as a point of contact. Complainant swears, in its Exhibit 6, that it became aware of Respondent’s use after a third-party contacted that e-mail address and became suspicious about its veracity. The Panel finds Complainant’s evidence sufficient, and finds that Respondent fails to use the <textron-incorporated.com> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). See Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Nat. Arb. Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also Mortgage Research Center LLC v. Miranda, FA 993017 (Nat. Arb. Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Respondent makes no contentions relative to Policy ¶ 4(a)(ii).
The Panel finds that Respondent has no rights to or legitimate interests in Complainant’s protected mark contained in its entirety within the disputed domain name; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith:
Complainant maintains that Respondent uses the <textron-incorporated.com> domain name in bad faith because it hosts an e-mail address used to conduct a fraudulent phishing scheme. Complainant urges that the “humanresources@textron-incorporated.com” e-mail address has been used in order to gather information about Internet users. In its Exhibit 5, Complainant provided a screenshot of a job post describing a purported job with Complainant listing the e-mail address. Complainant swears, in its Exhibit 6, that it became aware of Respondent’s use after a third-party contacted that e-mail address and came to believe the reply e-mail was fraudulent. Complainant relies on Zillow, Inc. v. Ryan G Foo / PPA Media Services, FA 1502001604451 (Nat. Arb. Forum March 19, 9 2015) stating “this use of a domain name for phishing disrupts the business of Complainant within the meaning of Policy ¶ 4(b)(iii) and is evidence of bad faith registration and subsequently of bad faith use” to demonstrate phishing as bad faith use under Policy ¶ 4(b)(iii). However, the use of the domain in that case involved an active website featuring surveys to phish for personal information. The Panel finds that phishing, in any form, is adequately disruptive, and finds that Respondent uses the <textron-incorporated.com> domain name in bad faith under Policy ¶ 4(b)(iii). See Mission KwaSizabantu v. Rost, D2000-0279 (WIPO June 7, 2000) (defining “competitor” as “one who acts in opposition to another and the context does not imply or demand any restricted meaning such as commercial or business competitor”).
Complainant contends that Respondent’s use of the <textron-incorporated.com> domain name to host an e-mail address in order to impersonate Complainant through a fraudulent phishing scheme is done in bad faith under Policy ¶ 4(b)(iv). Complainant urges that the “humanresources@textron-incorporated.com” e-mail address has been used in order to impersonate Complainant to gather information about Internet users. In its Exhibit 5, Complainant provided a post describing a purported job with Complainant listing the e-mail address. Complainant swears, in its Exhibit 6, that it became aware of Respondent’s use after a third-party contacted that e-mail address and became skeptical of the identity of the user of the e-mail address. The Panel finds this evidence sufficient to show that Respondent attempts to pass off as Complainant, and finds that Respondent uses the <textron-incorporated.com> domain name in bad faith according to Policy ¶ 4(b)(iv). See Hess Corp. v. GR, FA 770909 (Nat. Arb. Forum Sept. 19, 2006) (determining that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name); see also H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness).
Complainant further argues that Respondent registered the <textron-incorporated.com> domain name in bad faith because it did so with actual knowledge of Complainant’s rights in the TEXTRON mark. Complainant urges that because it began to use the mark in 1976 and the domain was registered in 2016, Complainant’s 40 years of use serves to show Respondent’s awareness of Complainant’s rights. The Panel finds this argument persuasive to show actual, and not merely constructive knowledge, and it also finds that the use itself is supportive proof that Respondent knew of Complainant’s rights in the mark and opportunistically used Complainant’s own identity to pass itself off as Complainant to unsuspecting Internet users who without doubt relied on this misrepresentation to give up personal and most likely confidential information in the belief that Complainant would be offering employment. Such conduct. phishing, supports findings that Respondent registered and used the <textron-incorporated.com> domain name in bad faith. See Bluegreen Corp. v. eGo, FA 128793 (Nat. Arb. Forum Dec. 16, 2002) (finding bad faith where the method by which the respondent acquired the disputed domain names indicated that the respondent was well aware that the domain names incorporated marks in which the complainant had rights); but see Meredith Corp. v. CityHome, Inc., D2000-0223 (WIPO May 18, 2000) (finding that the respondent’s constructive notice of the complainant’s registered mark was insufficient to support a finding of bad faith registration).
Respondent makes no contentions relative to to Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and used the disputed domain name in bad faith; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <textron-incorporated.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: May 4, 2016
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